Arbitration CAS 2015/A/4153 Al-Gharafa SC v. Nicolas Fedor & Fédération Internationale de Football Association (FIFA), award of 9 May 2016

Transcription

1 Tribunal Arbitral du Sport Court of Arbitration for Sport Arbitration CAS 2015/A/4153 Al-Gharafa SC v. Nicolas Fedor & Fédération Internationale de Football Association (FIFA), Panel: Mr Mark Hovell (United Kingdom), President; Mr Ercus Stewart (Ireland); Mr Efraim Barak (Israel) Football Termination of the employment contract by mutual agreement FIFA circulars and hierarchy of norms Responsibility of the debtor to comply with its obligations 1. In accordance with clear and consistent CAS jurisprudence, FIFA circulars cannot be allowed to take precedence over the clear and specific wording of FIFA s regulations, including the RSTP, as the RSTP contains provisions of a higher ranking in the hierarchy of FIFA regulations than the contents of a circular. The wording in a FIFA circular cannot amend, override, change or contradict the provisions in the RSTP. If there is a contradiction between the RSTP and a circular, the former should prevail. Pursuant to the principle of contra proferentem, any unclear wording should be interpreted against the author of the wording (i.e. FIFA). 2. It is the responsibility of the debtor to undertake all relevant efforts to comply with its obligations. The utmost obligation of the debtor is to duly transfer the amount to the bank account provided by the creditor, and, therefore it is the responsibility of the debtor to do all relevant efforts to comply with its payment obligation in accordance with a FIFA decision and according to the creditor s wishes. The actions of a club, whose bank transfer to a player is rejected as the bank deems it to be a violation of the national anti-money laundering laws but does not notify the player or request his assistance in either clarifying or remedying the situation with the bank, does not respond to four separate default notices and only raises these alleged problems once a legal dispute is commenced at FIFA and then the CAS, are not consistent with those of a debtor willing, in good faith, to undertake all relevant efforts to comply with its financial and contractual obligations. Accordingly, the club cannot be exempted from its financial obligations for reasons out of its control (i.e. the national anti-money laundering laws) and it has to make the payment due to the player.

2 2 I. PARTIES 1. Al-Gharafa SC (the Club or Appellant ) is a football club with its registered office in Doha, Qatar. The Club is currently competing in the Qatar Stars League. It is a member of the Qatar Football Federation, which in turn is affiliated to Fédération Internationale de Football Association. 2. Nicolas Fedor (the Player or First Respondent ) is a professional football player of Venezuelan and Hungarian nationality. 3. Fédération Internationale de Football Association ( FIFA or the Second Respondent ) is the governing body of world football and has its registered office in Zurich, Switzerland II. FACTUAL BACKGROUND 4. Below is a summary of the main relevant facts and allegations based on the parties written submissions, pleadings and evidence adduced during these proceedings. Additional facts and allegations may be set out, where relevant, in connection with the legal discussion that follows. Although the Panel has considered all the facts, allegations, legal arguments and evidence submitted by the parties in the present proceedings, it refers in this Award only to the submissions and evidence it considers necessary to explain its reasoning. 5. On 29 September 2013, the Club and the Player entered into an employment agreement valid from that date until 31 July 2016 (the Employment Agreement ). Under the Employment Agreement, the Player was entitled to a total remuneration of EUR 4,500,000 net of any worldwide tax. 6. Article 8 of the Schedule to the Employment Agreement provided as follows: All the amounts specified in clause 1 and 2 of this SCHEDULE are considered to be NET amounts. The Club shall assume any possible Tax withholding of the Player in accordance with the Tax rate of the country where the Player is a Tax resident. In order for the Player to become a Tax resident of Qatar, the Club shall arrange for the Player any certificate whatsoever required by the Player to prove that he is Tax resident in Qatar. 7. On 29 January 2015, the Club and the Player decided by mutual agreement to terminate the Employment Agreement before the expiry date and entered into a settlement agreement that day (the Settlement Agreement ). 8. Clause 2.1 of the Settlement Agreement provided as follows: The Club shall, as full, complete and final settlement under the Employment Contract pay to the Player to the total amount of EUR 750,000 (seven hundred and fifty thousand Euros) net ( settlement amount ) within 3 (three) days as from the signature of this Agreement.

3 3 9. Clause 2.2 of the Settlement Agreement provided as follows: The aforementioned amount shall be transferred to the following bank account of the Player: BENEFICIARY BANK: [ ] ACCOUNT HOLDERS: NICOLAS FEDOR FLORES L. E/O [ ] ACCOUNT NUMBER: [ ] IBAN: [ ] SWIFT: [ ] In the event the payment is done to another bank account different from the one contained herein, the payment shall be deemed as not done. 10. Clause 2.3 of the Settlement Agreement provided as follows: In the event the Club fails to provide the payment as set out in clause 2.1 and clause 2.2 above, default interest will accrue on the full amount outstanding at the rate of 5% annual rate from the due date until the date of payment. 11. Further, clause 4 of the Settlement Agreement provided that the notices between the parties relating to the Settlement Agreement must be delivered in person or sent in writing, post or facsimile. 12. On 4 February 2015, the Club sent a formal request to its bank in Qatar - the Qatar National Bank (the QNB ) to transfer to the Player the amount of EUR 750,000 as set out of clause 2.1 of the Settlement Agreement. The Club also provided to its bank a copy of the referenced Settlement Agreement. 13. On 7 February 2015, a manager from the QNB ed the Club stating as follows: We kindly inform you that our compliance refused to transfer the amount to the bank account you indicated in our last . It seems that some elements set out in the bank account indicated and in the settlement agreement does not comply with anti-money Laundering laws of Qatar. 14. The QNB later informally clarified to the Club that they suspected the money transfer would breach the terms and conditions set out in Combating Money Laundering and Terrorism Financing Law of Qatar and the Anti-Money Laundering and Combating Terrorist Financing Rules (the QAML laws ) as the transfer contained the following suspicious elements: The QNB did not understand why a Venezuelan/Hungarian football player wanted to receive such a large amount in a bank account in Switzerland.

4 4 Up until that point, all the employment remuneration for the Player had been transferred to his bank account in Doha, Qatar. The Settlement Agreement set out that the amount had to the paid to the Player, yet the bank account provided was in the name of the Player and another unidentified holder Viviana Carolina Acosta Cammarota. The QNB found it suspicious that the transfer was only permitted to be done to a Swiss bank account and no other account. None of the other settlement agreements signed with the other football players required the Club to pay amounts to bank accounts in Switzerland. The Club and the Player failed to provide any documents from the Venezuelan, Spanish or Hungarian tax authorities referencing the Swiss bank account. 15. On 9 February 2015, the Player sent a written notification to the Club, requesting the payment of the agreed EUR 750,000 (net). The Club did not respond to this letter. 16. On 2 March 2015, the Player sent a second written notification to the Club, requesting the payment of the agreed EUR 750,000 (net) on or before 9 March 2015, failing which the Player would file a claim before the FIFA Dispute Resolution Chamber (the FIFA DRC ). The Club did not respond to this letter. 17. On 10 March 2015, the Player sent a third written notification to the Club, requesting the payment of the agreed EUR 750,000 (net) on or before 12 March 2015, failing which the Player would file a claim before the FIFA DRC. The Club did not respond to this letter either.

5 5 Proceedings before FIFA 18. On 25 March 2015, the Player filed a statement of claim before the FIFA DRC claiming the payment of the agreement EUR 750,000 (net) plus default interest of 5% as from 2 February 2015 until the date of effective payment. Further, the Player requested that the FIFA DRC apply a transfer ban on the Club for one or two consecutive registration periods in accordance with Article 12bis(4) of the FIFA Regulations on the Status and Transfer of Players (the RSTP ). 19. On 27 March 2015, FIFA acknowledged receipt of the Player s claim and informed him that in order to consider his claim, the Player should provide by 10 April 2015 proof of a written default notice to the Club granting a minimum deadline of 10 days in order to comply with its financial obligations, as well as copy of the Settlement Agreement in which the signature of both parties was legible. 20. On 27 March 2015, the Player provided FIFA with a legible copy of the Settlement Agreement. 21. On 30 March 2015, the Player amended his claim and sent a fourth written notification to the Club, requesting the payment of the agreed EUR 750,000 (net) within 10 days. 22. On 14 April 2105, FIFA wrote to the Club informing them of the Player s claim regarding overdue payables and specific mention was made in this letter to Article 12bis of the RSTP. 23. On 11 May 2015, the Appellant filed an answer before the FIFA DRC, acknowledging its obligation to pay the agreed amount and confirming its willingness to comply. However, in summary, the Club sustained that it could not complete the payment since there were strong indications that the referenced bank account was used for tax evasion purposes. Further, the Club stated that the Player should provide an alternative bank account where the payment could be made or alternatively, provide a document confirming that the Swiss bank account provided by the Player complied with the tax laws of Venezuela, Hungary and Spain. 24. On 22 May 2015, FIFA wrote to the parties informing them that the investigation phase of the matter had been closed and that the matter was to be submitted to the FIFA DRC for consideration and a formal decision within the next 3 to 5 working days. 25. On 22 June 2015, the FIFA DRC rendered a decision (the Appealed Decision ) as follows: 1. The claim of the Claimant, Nicolas Fedor, is partially accepted. 2. The Respondent, Al Gharafa SC, has to pay to the Claimant, within 30 days as from the date of notification of this decision, overdue payables in the amount of EUR 750,000, plus interest at the rate of 5% p.a. as from 2 February 2015 until the date of effective payment. 3. In the event that the amount due to the Claimant is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 4. Any further claim lodged by the Claimant is rejected.

6 6 5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. 6. A warning is imposed on the Respondent. III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT 26. On 20 July 2015, pursuant to Article R47 of the Code of Sports-related Arbitration (the CAS Code ), the Club filed a Statement of Appeal against the Player and FIFA at the Court of Arbitration for Sport (the CAS ). The Statement of Appeal contained the following requests for relief: FIRST To set aside the Appealed Decision; Alternatively and only in the event the above is rejected: SECOND THIRD - FOURTH - FIFTH - To annul the Appealed Decision, refer the case to the FIFA DRC and order the FIFA DRC to re-start the FIFA DRC proceedings while grating [sic] the Appellant full party rights based upon the provisions set out in the FIFA Rules Governing the Procedures of the Players Status Committee and the Dispute Resolution Chamber; To grant the Appellant, upon request, further or other relief that may be appropriate; and To condemn the First Respondent and the Second Respondent to the payment of the legal expenses incurred by the Appellant; and To establish that the costs of this arbitration procedure before CAS will be borne by the First Respondent and the Second Respondent. 27. In its Statement of Appeal, the Club requested that the matter be heard by a Sole Arbitrator. 28. On 27 July 2015, the Player wrote to the CAS office stating that he did not agree with the matter being heard by a Sole Arbitrator unless it was one of Mr Efraim Barak, Mr Michele Bernasconi or Mr Rui Botica Santos. In the event that the matter was to be heard by a Panel, the Player nominated Mr Efraim Barak, Attorney-at-Law, Tel Aviv, Israel as an arbitrator. 29. On 31 July 2015, FIFA wrote to the CAS Court Office stating that it did not agree with the appointment of a Sole Arbitrator as this was the first case at the CAS dealing with Article 12bis of the RSTP and the outcome could therefore potentially have substantial and wide reaching consequences in respect of future FIFA procedures. Consequently, FIFA preferred that the matter was to be heard by a Panel of three arbitrators to provide a more balanced outcome. 30. On 7 August 2015, pursuant to Article R51 of the CAS Code, the Club filed its Appeal Brief with the CAS Court Office with the following requests for relief:

7 7 FIRST SECOND To set aside the Appealed Decision in full; To annul the Appealed Decision and refer the case to the FIFA DRC and order the FIFA DRC to re-start the legal proceedings based upon the correct applicable law and procedure rules, since the applicable law and procedure rules executed by the members of the FIFA DRC while rending the Appealed Decision (i.e. versions 2015) is legally baseless. Alternatively and only in the event the above is rejected; THIRD - FOURTH - To confirm pursuant the date in which statement of claim was lodged by the First Respondent (i.e. 25 March 2015) Art. 12bis of the FIFA RSTP does not apply to the ongoing dispute (cf. Art. 29 and Art. 26 of the FIFA RSTP, in combination with Art. 21, par. 2 of the FIFA Procedure Rules); To set aside the warning imposed on the Appellant in accordance to the Appealed Decision since Art. 12bis of the FIFA RSTP does not apply to the ongoing matter (cf. Art. 29 and Art. 26 of the FIFA RSTP, in combination with Art. 21, par. 2 of the FIFA Procedure Rules); Alternatively and only in the event the above is rejected; FIFTH - SIXTH - SEVENTH - To set aside the warning imposed on the Appellant and set out in Appealed Decision, in the unlike event version 2015 of the FIFA RSTP is confirmed as applicable law in the ongoing matter since the First Respondent failed anyway to attend the pre-requisites as set out in Art. 12bis, par. 3 of the FIFA RSTP; To confirm that the non-compliance of the contractual obligations set out in clause 2.1 of the Settlement Agreement, in casu, the payment of EUR 750,000 to the First Respondent shall not be attributed to the Appellant; To uphold that in the scenario set out above, the Appellant shall not be ordered to pay any default interest since the non-compliance with the obligations set out in clause 2.1 of the Settlement Agreement cannot be attributed to it; Alternatively and only in the event the above is rejected; EIGTH - NINETH - To confirm that in the unlike event the Panel order the Appellant to pay default interest the rate shall not be higher than 5% p.a., as well as it shall be calculated as from the moment in which the default notice was officially forwarded by the First Respondent (i.e. 30 March 2015); and To establish that any procedure or legal cost determined by the Panel and relating to this arbitration shall be calculated paying due consideration to the terms and conditions as set out in clause 6.1 of the Settlement Agreement. 31. On 7 August 2015, the Club also wrote to the CAS Court Office nominating Mr Ercus Stewart SC, Barrister, Dublin, Ireland, as an arbitrator.

8 8 32. On 10 August 2015, FIFA wrote to the CAS Court Office stating that it did not object to the Player s nomination of Mr Efraim Barak as an arbitrator. 33. On 8 September 2015, pursuant to Article R54 of the CAS Code and on behalf of the President of the CAS Appeals Arbitration Division, the CAS Court Office informed the parties that the Panel appointed to this case was constituted as follows: President: Arbitrators: Mr Mark A. Hovell, Solicitor, Manchester, United Kingdom Mr Ercus Stewart S.C., Barrister, Dublin, Ireland Mr Efraim Barak, Attorney-at-Law, Tel Aviv, Israel. 34. On 28 September 2015, pursuant to Article R55 of the CAS Code, the Player filed his Answer containing the following requests for relief: 1. Reject the appeal filed by the Appellant, Al Gharafa SC, against the decision of the FIFA Dispute Resolution Chamber on 22 June 2015 (reference nr. OP /ssa), whose grounds were notified to the Parties on 29 June Confirm the FIFA DRC decision in full and accordingly, to condemn Al Gharafa SC to pay Mr. Fedor overdue payables in the amount of EUR 750,000 (Seven Hundred Fifty Thousand Euros) net of any taxes plus interest at the rate of 5% p.a. as from 2 February 2015 until the date of effective payment in accordance with the settlement agreement entered into by the Parties on 29 January Confirm the warning imposed on the Appellant by the FIFA DRC. 4. Fix a minimum sum of 50,000 CHF to be paid by the Appellant as a contribution to the First Respondent s legal fees and costs. 5. Condemn the Appellant to pay the entire amount of CAS administration and the Arbitrator fees. 35. On 28 September 2015, pursuant to Article R55 of the CAS Code, FIFA filed its Answer containing the following requests for relief: 1. In light of the above considerations, we insist that the decision passed by the DRC was fully justified. We therefore request that the present appeal be rejected and the decision taken by the DRC on 22 June 2015 be confirmed in its entirety. 2. Furthermore, all costs related to the present procedure as well as the legal expenses of FIFA shall be borne by the Appellant. 36. On 29 September 2015, the CAS Court Office wrote to the parties inviting them to inform the CAS Court Office whether they preferred a hearing to be held in this matter or whether wished for the Panel to issue an award based solely on the parties written submissions.

9 9 37. On 1 October 2015, the Player wrote to the CAS Court Office stating that he did not deem a hearing to be necessary and wished for the Panel to render an award solely on the written submissions. 38. On 5 October 2015, FIFA wrote to the CAS Court Office stating that it did not deem a hearing to be necessary and wished for the Panel to render an award solely on the written submissions. 39. On 6 October 2015, the Club wrote to the CAS Court Office stating that it wished for a hearing to be held in this matter. 40. On 14 October 2015, given the disagreement between the parties regarding the need for a hearing, the CAS Court Office wrote to the parties on behalf of the Panel requesting them to inform the CAS Court Office by 16 October 2015 whether it would accept a second round of written submissions in lieu of a hearing. 41. On 16 October 2015, the Club wrote to the CAS Court Office stating that it preferred to have a hearing in lieu of a second round of written submissions. FIFA wrote to the CAS Court Office stating that it preferred to have a second round of written submissions in lieu of a hearing. The Player did not state a preference in this regard and his silence was considered an acceptance that he would prefer a second round of submissions in lieu of a hearing. 42. On 21 October 2015, the CAS Court Office wrote to the parties on behalf of the Panel informing them that prior to determining whether a hearing was necessary, the Panel had ordered the parties to engage in a second round of written submissions. Further, the Panel provided the parties with a copy of CAS 2013/A/3323 Deportivo Petare FC v FIFA and were invited to address the applicability (or not) of this case to the present proceedings. 43. On 3 November 2015, the Club submitted its second round of written submissions, which contained the following additional request for relief in addition to those contained in its Appeal Brief: Alternatively and only in the event the above is rejected: TENTH - To establish that in the event the Panel understands that clause 6.1 of the Settlement Agreement is not applicable in the ongoing arbitration, any procedure or legal cost determined and relating to this arbitration shall be paid by the First Respondent and the Second Respondent. 44. On 18 November 2015, the Player submitted his second round of written submission entitled Answer to the Reply Brief. 45. On 23 November 2015, FIFA submitted its second round of written submissions. 46. On 4 December 2015, the CAS Court Office wrote to the parties informing them that based on the two rounds of written submissions to date, the Panel deemed itself sufficiently informed to render an award on the written submissions alone, without a hearing, in accordance with Article R44.2 of the CAS Code. Accordingly, no hearing would be held in this matter.

10 On 22 December 2015, all three parties filed a signed Order of Procedure with the CAS Court Office. IV. SUBMISSIONS OF THE PARTIES 48. The following summary of the parties positions is illustrative only and does not necessarily comprise each and every contention put forward by the parties. The Panel however, has carefully considered all the submissions made by the parties, even if no explicit reference is made in what immediately follows. 49. The Panel was made aware by the Player of certain without prejudice communications between the parties. The Club objected to the correspondence forming part of the CAS file in the matter at hand. The Panel, noted that the correspondence was not intended to be part of the CAS file and therefore disregarded it entirely. A. The Club s Submissions In summary, the Club submitted the following in support of its Appeal: i. Violation of Procedural rules by the FIFA DRC 50. The Club noted that prior to the case being heard by the FIFA DRC, they were not officially informed by the FIFA general secretariat about who the members of the FIFA DRC panel were that would be hearing the matter. The Club submitted that this was a violation of Article 7 of the FIFA Procedural Rules, the pertinent section of which states: 7 Withdrawal and challenges 2. Members of the Players Status Committee and of the DRC may be challenged by the parties if there is legitimate doubt as to their independence and impartiality. A challenge shall be made within five days of the grounds for the challenge coming to light, otherwise the parties shall forfeit the right to make a challenge. Motions shall be substantiated and, if possible, supported by evidence. If the member concerned disputes the allegation raised, the Players Status Committee or the DRC shall reach a decision on the challenge in the absence of the member concerned. 51. FIFA notified the Club and the Player on 22 May 2015 that the investigative phase of the dispute had been completed and the matter was going to be submitted to the FIFA DRC for consideration and formal decision within 3 to 5 working days. The Club stated that as a general rule, at this stage FIFA usually also informs the parties of the precise date and the member(s) who will analyse and decide the dispute. 52. However, in this case FIFA failed to do that. The Club only later received a copy of the Appealed Decision on 29 June As they were not informed of the identity of the member(s)

11 11 of the FIFA DRC who were to hear the dispute, they were deprived of the right to challenge their appointment(s) pursuant to Article 7(2) of the FIFA Procedural Rules quoted above. The Club submitted that this was not only a violation of Article 7 of the FIFA Procedural Rules, but also a violation of the Club s personality rights, the principle of equal treatment and due process and also infringed Swiss public policy. 53. The Club also asserted that there was a violation of the equal treatment of the parties pursuant to Article 9 of the FIFA Procedural Rules. The Club noted that on 27 March 2015, after he lodged his claim at FIFA, the FIFA administration wrote to the Player informing him to provide by 10 April 2015 proof of a written default notice to the Club granting them a minimum of 10 days to comply with their financial obligations in accordance with Article 12bis of the FIFA RSTP. The Club argued that while the FIFA administration can assist the parties in avoiding their claims or answers being rejected by the FIFA DRC (per Article 9(2) of the FIFA Procedural Rules), in this particular case it amounted to a violation of the principle of equal treatment of the parties as there was no reason for them to request the Player to obtain proof of a default notice pursuant to Article 12bis of the FIFA RSTP. In doing so, it acted against the interests of the Club. 54. Accordingly, for all the reasons above, the Club stated that the Appealed Decision was null and void and that the matter should be referred back to the FIFA DRC in order for the matter to be heard again. ii. Application of the incorrect version of the RSTP 55. The Club stated that the FIFA DRC applied the incorrect version of the RSTP in the Appealed Decision. 56. On 23 January 2015, FIFA issued to its members FIFA Circular Number 1468 ( Circular 1468 ) regarding prospective amendments to the RSTP and Procedural Rules. The introduction of Article 12bis was one of the changes discussed in Circular Circular 1468 contained a number of new amendments, some of which were to come into force on 1 March 2015 and others which were to come into force on 1 April The Club acknowledged that it clearly stated that Article 12bis was to come into force on 1 March A few weeks later, a copy of the revised version of the RSTP ( RSTP 2015 ) was issued and was sent to FIFA member associations and uploaded on to the FIFA website. 58. However, while the RSTP 2015 contained the new Article 12bis as expected, it also contained the following provisions (emphasis added by the Panel): 26 Transitional Measures 1. Any case that has been brought to FIFA before these regulations come into force shall be assessed according to the previous regulations.

12 12 2. As a general rule, all other cases shall be assessed according to these regulations with the exception of the following: a) disputes regarding training compensation; b) disputes regarding the solidarity mechanism; c) labour disputes relating to contracts signed before 1 September Any cases not subject to this general rule shall be assessed according to the regulations that were in force when the contract at the centre of the dispute was signed, or when the disputed facts arose. 29 Enforcement These regulations were approved by the FIFA Executive Committee on 20 and 21 March 2014, respectively 18 and 19 December 2014 and come into force on 1 April At no point in the RSTP 2015 did it specify that Article 12bis was to come into force on 1 March 2015 instead of 1 April Further, Article 12bis did not fall into the exceptions listed above in Article 26(2) RSTP Accordingly, there was a contradiction regarding when Article 12bis came into force. Circular 1468 stated that it was to be 1 March 2015 while Article 29 of the RSTP 2015 states that it was 1 April The Player s Statement of Claim was submitted to FIFA on 25 March 2015, i.e. in between these two dates. 61. The Club submitted that it is undisputed that contents of FIFA Circular letters do not have the legal prerequisites to supersede the provisions set out in the RSTP. In this regard, the Club quoted CAS 2009/A/1810 & 1811, which stated: The interpretation of the statutes and of the rules of a sport association has generally to be objective and always begin with the wording of the rule, which is the object of the interpretation. 62. The Club also quoted CAS 2004/A/594, which stated: 1. For the implementation of the FIFA Regulations, FIFA has issued numerous Circular Letters. Although these Circular Letters are not regulations in a strict legal sense, they reflect the understanding of FIFA and the general practice of the federations and associations belonging thereto. Thus, these Circular Letters are relevant for the interpretation of the FIFA Regulations. 63. Given the contradiction between the RSTP 2015 and Circular 1468, the former should prevail based upon the fundamental principle of hierarchy of norms. Moreover, pursuant to the principle of contra proferentem, the unclear wording should be interpreted against the author of the wording (i.e. FIFA).

13 The Club also noted that FIFA could have provided the Panel with copies of previous versions of the RSTP which contained Article 12bis and stated that it was to come into force on 1 March However, it did not do so, instead relying on FIFA Circular Letters to establish the existence of Article 12bis as of 1 March The Club submitted that according to all of the above, the previous, published version of the RSTP (the RSTP 2014 ) should have been applied by the FIFA DRC in the Appealed Decision as the RSTP 2015 had not yet come into force when the Player filed his statement of claim with FIFA and the wording of the RSTP takes precedence over FIFA Circular Letters. 66. However, the FIFA DRC applied the RSTP 2015 (and consequently the new Article 12bis) in making their decision, which was confirmed in paragraph 3 of the Appealed Decision which stated: 3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26, par. 1 and par. 2 of the Regulations on the Status and Transfer of Player (2015), and considering the present claim was lodged on 25 March 2015, the 2015 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 67. As the incorrect version of the applicable law was applied in the Appealed Decision, the Club asserted that the Appealed Decision should be deemed null and void and the matter should be sent back to the FIFA DRC to be heard again as this was not a procedural violation that could be cured by the de novo principle. To not do so would certainly pass a negative message to the members of FIFA as [a] whole, giving the impression that any kind of procedural irregularity can be cured by CAS. iii. Non applicability of Article 12bis of the RSTP Even if the Panel were to rule that the FIFA DRC correctly applied the RSTP 2015 in the Appealed Decision, the Club argued that the FIFA DRC incorrectly applied Article 12bis as there was no legal basis to apply it on the [Club] whatsoever. 69. According to Article 12bis (3) of the RSTP 2015: In order for a club to be considered to have overdue payables in the sense of the present article, the creditor (player or club) must have put the debtor club in default in writing and have granted a deadline of at least ten days for the debtor club to comply with its financial obligation(s). 70. The Club noted that the statement of claim was filed by the Player on 25 March However, the Player then sent a letter to the Club on 30 March 2015 (i.e. 5 days after filing a claim at the FIFA DRC) putting the Club on notice of the default for the overdue payment. 71. The Club argued that this was a violation of Article 12bis (3) of the RSTP 2015 as it did not make any legal sense whatsoever to address a default notice to a party after having lodged a claim at FIFA. The Club argued that the spirit of Article 12bis of the RSTP 2015 was based upon the principle of good faith as it should grant the debtor a chance to remedy the purported breach within the 10-day deadline.

14 As the Player had already filed a claim at FIFA before issuing the Club with a default notice per Article 12bis (3) of the RSTP 2015, the FIFA DRC should not have applied any of the sanctions listed in Article 12bis (4) of the RSTP 2015 against the Club. Consequently, the warning that was applied against the Club in the Appealed Decision should not have been imposed. 73. Moreover, based on the letter FIFA sent to the Player on 27 March 2015, it was apparent that the default notices which the Player had previously sent to the Club were not sufficient to comply with the terms and conditions set out in Article 12bis (3). Were it not for the actions by FIFA administration in providing the Player with privileged instruction, the Player s claim would not have complied with Article 12bis RSTP Accordingly, the overdue payables element of his claim should be deemed null and void. iv. Violation of Qatar public policy 74. The Club clarified that it had always maintained (during correspondence with the Player, during the dispute at FIFA and now at the CAS) that it was willing to comply with its obligations under the Settlement Agreement and it did not deny that it owed the Player EUR 750,000. The Club also acknowledged that clause 2.2 of the Settlement Agreement specifically stated that In the event the payment is done to another bank account different from the one contained herein, the payment shall be deemed as not done. 75. However, the Club claimed that the amount had not been paid yet for two reasons: 1) the QNB refused to transfer the money to the Swiss bank account indicated in the Settlement Agreement; and 2) the Player refused to provide an alternate bank account. 76. In their submissions, the Club referred to the QAML laws which stated, inter alia, that when deciding whether an unusual or inconsistent transaction was a suspicious transaction, a financial institution in Qatar needed to take into account whether the transaction had no apparent or visible economic purpose, whether the size or pattern of the transaction was unusual, whether the customer had failed to give an adequate explanation for the transaction or to fully provide information about it, whether the transaction involved the use of offshore accounts, companies or structures that are not supported by the customer s economic needs and whether the transactions involved the unnecessary routing of funds through third parties. 77. In this regard, the Club submitted as evidence an from the QNB dated 7 February Further, the Club stated that the QNB later informally clarified to them that their compliance department considered the transaction unusual (paragraphs 13 and 14 supra). 78. Accordingly, the Club stated that completing the transfer would have been a violation of Qatar public policy and there was nothing the Club could have done about it. As such, clause 2.2 of the Settlement Agreement (which required the amount to be transferred to the Swiss bank account) should be disregarded. 79. The Club stated that this problem could have been remedied if the Player was willing to provide details of an alternate bank account to conclude the transfer. As the Player was not willing to

15 15 do so, the non-compliance of the Club s obligation to pay the amount of EUR 750,000 should not be attributed to the Club. v. Imposition of default interest and costs 80. Finally, the Club stated that in the event the Panel determined that the Club had to pay default interest, the calculation of the said interest should only commence from 30 March 2015 which is the date the Player sent the default notice required under Article 12bis RSTP Further, Clause 6.1 of the Settlement Agreement states as follows: In the event of a dispute arising from this Agreement, each party shall pay and be responsible for its own costs, including any legal costs, incurred which relate to any such dispute, including costs arising out of mediation, arbitration, litigation, or any alternative dispute resolution. 82. As such, each party should be responsible for their own costs including legal costs and the costs of this arbitration. vi. Summary of the second round of submissions by the Club In addition to the arguments outlined above, the Club, in summary, also submitted the following in their second round of submissions: 83. FIFA had no legal basis to demand its members assume that legal proceedings would run in a different legal manner from those expressly and formally stated in its own regulations (i.e. the FIFA Procedural Rules). Moreover, FIFA has an obligation to provide this information, otherwise parties are not able to exercise their right to challenge any member(s) of the proposed FIFA DRC panel. 84. The reason the Club did not contest FIFA s letter dated 22 May 2015 (i.e. which stated that the matter was going to be submitted to the FIFA DRC but did not specify the composition of the FIFA DRC panel) is that it was waiting for FIFA s final communication which is usually sent by a member of the FIFA Players Status Committee. This final letter confirms the date and composition of the FIFA DRC which was to hear the matter, but the Club never received such a letter in this instance. This constituted a violation of due process and the Club s right to be heard. 85. In response to FIFA s submission that the Club had not contested the composition of the FIFA DRC panel in another, separate, case currently being heard at the FIFA DRC, the Club referred to Art. 5, par. 7 of the FIFA Procedural Rules to state that any information regarding another case currently being heard should be inadmissible for reasons of confidentiality. 86. In response to FIFA s arguments relating to the applicability of Article 12bis, the Club noted that FIFA should have submitted printed versions of the former RSTP s, i.e. January 2015 and March However, they did not and instead chose to rely on FIFA Circular letters to evidence the applicability and existence of former versions of the RSTP.

16 In response to the Player s submissions that the de novo rule would cure any alleged procedural defects from the Appealed Decision, the Club argued that the de novo rule is not limitless and the procedural violations in this matter (as outlined above) are sufficiently significant for the Panel to return the mater back to the FIFA DRC. 88. In response to the Player s submissions that the pacta sunt servanda principle was breached by the Club in this case, the Club argued that this principle was not absolute and the principle of clausula rebus sic stantibus applied to give them an escape clause from the Settlement Agreement due to the fundamental change of circumstances. 89. Further, the Club reiterated that in a letter to FIFA dated 11 May 2015, they offered to make the required payment to a separate bank account but the Player never stepped in to accept this offer and solve the banking problems. As such, the Player is now estopped from claiming that he never refused to provide an alternative bank account. vii. Applicability of CAS 2013/A/3323 to this case 90. The Club submitted that in CAS 2013/A/3323, the Venezuelan club never provided any evidence that they tried to transfer the outstanding amount to the Argentinean player or that there was an obstacle to making the required payment. Conversely, in this case the Club has provided evidence that they tried to make the payment and the QNB denied it. 91. Further, the Club noted that in CAS 2013/A/3323, the Player requested the payment to be made into a bank account located in the place where he lived whereas in this case, the Player is asking for a payment to be made in Switzerland in lieu of his place of residence. B. The Player s Submissions In summary, the Player submitted the following in support of his defence: 92. The dispute falls under the scope of the pacta sunt servanda principle as the Player and the Club entered into a valid and binding agreement (the Settlement Agreement) which the Club has failed to honour for no legitimate reason. In fact, the Club do not even deny that they are obliged to fulfil their obligations. Further, despite the Club s assertions, the Club never informed the Player by writing that there was an issue with his Swiss bank account. 93. The Club, in bad faith, only appealed the Appealed Decision to the CAS in order to delay the entire procedure and its payment obligation towards the Player. The present appeal was nothing more than a dilatory tactic to postpone its financial obligations in bad faith which has caused the Player immense financial and moral damage. 94. With respect to the Club s request to send the matter back to FIFA for reconsideration, the Player stated that this had no legal basis as even if the Panel were to decide that there were procedural violations by the FIFA DRC or the incorrect version of the RSTP was applied in the Appealed Decision, pursuant to Article R57 of the CAS Code, the Panel had the power to hear the matter de novo. In doing so, the Panel would be curing any alleged procedural violations

17 17 in the Appealed Decision. The Player cited numerous CAS cases such as CAS 1998/A/208, CAS 2008/A/1700 and CAS 2008/A/1710 to support this argument. As such, the Panel had no reason to refer the case back to FIFA and doing so would only benefit the Club and cause further damage to the Player. Moreover, in direct response to the Club s arguments, the Player submitted the following: i. Violation of Procedural rules by the FIFA DRC 95. In their correspondence to the parties dated 22 May 2015, FIFA informed the parties that the investigatory phase of the procedure had finished, the matter was going to be submitted to the FIFA DRC for consideration and a formal decision within 3 to 5 working days and there was no mention that any further correspondence would be sent. The Player noted that despite being aware of this, the Club did not raise any objection whatsoever. 96. If the Club wanted to know the identity of the FIFA DRC members who would be deciding the matter, it had the opportunity to request FIFA to disclose this information. However, it did not do so, thereby tacitly accepting the manner in which FIFA conducted the proceedings. Moreover, the legal counsel representing the Club at the CAS is the same counsel who represented the Club at FIFA and he should have acted in good faith at the stage of the FIFA proceedings if he had any procedural objections. 97. Irrespective of this, the Club had nonetheless not provided at the CAS any grounds under which it would, or could, have challenged the independence or impartiality of any of the FIFA DRC members who passed the Appealed Decision. This proves that even if the Club did know the identity of the FIFA DRC members, they would not have raised a challenge anyway. 98. The Player also denied the Club s claims that the FIFA administration unfairly assisted him by requesting him to provide proof of putting the Club in default pursuant to Article 12bis. The Player states that he had already put the Club in default on three separate occasions (9 February 2015, 2 March 2015 and 10 March 2015) and provided the Club more than a month to make the outstanding payment. Therefore, if anything it was the Player who suffered harm by having to issue a fourth default notice providing the Club with a further 10 days to make the payment. The Player stated that the Club s obligation to pay is irrefutable. 99. Accordingly, the manner in which FIFA conducted the proceedings had not caused any damage to the Club whatsoever and the sole intention of the Club when attempting to refer the matter back to FIFA was to simply further delay its payment obligations towards the Player. ii. Application of the incorrect version of the RSTP 100. The Player noted that it was widely known and publicised that Article 12bis was to come into force on 1 March 2015 while other amendments were to come into force on 1 April As such, there were, in effect, two new versions of the RSTP a 1 March 2015 version and a 1 April 2015 version.

18 It was specified in FIFA s letter to the parties dated 22 May 2015 that the 1 March 2015 edition of the RSTP would be applied by the FIFA DRC to the dispute The Player further stated that the fact FIFA did not upload a version of the 1 March 2015 RSTP does not mean that the 1 March 2015 RSTP had not come into force, as a document being published on the FIFA website is not a prerequisite to its validity. FIFA had widely communicated to the football world in general that certain amendments (including Article 12bis) were to come into force on 1 March 2015 and thus, it did come into force on that date without the need for further communication. iii. Non applicability of Article 12bis of the RSTP In respect of the Club s argument that the Player had not put the Club in default correctly pursuant to Article 12bis RSTP 2015, the Player noted again that it had actually sent the Club notices on three separate occasions (on 9 February, 2 March and 10 March 2015) even before his letter of 30 March If the Club had intended to comply with its obligations in accordance with its good faith, it had ample opportunity to do so In summary, the Player fully complied with all the required elements of Article 12bis RSTP 2015 before FIFA considered his claim. iv. Violation of Qatar public policy 105. In relation to the Club s arguments about the impossibility of making the bank transfer, the Player noted the following: Firstly, the Swiss bank account specified in clause 2.2 of the Settlement Agreement was the same bank account to which the Player had transferred all of his money from his QNB bank account when he left Qatar. The reason for being specific about this in the Settlement Agreement was to avoid any potential misunderstanding in the future. Secondly, the Player had used this bank account for many years regardless of where he was playing at the time (Spain, Scotland or Qatar). He never had any problems in the past in money being transferred to this Swiss bank account from anywhere in the world. Thirdly, the Club never informed the Player about the alleged problems with the Swiss bank account. Further, contrary to the Club s assertions, it never asked him to provide a new, alternative bank account or provide any documentation to assist in getting the payment approved. Had the Club informed the Player of these alleged problems, the Player would have done everything he could (save for providing an alternate bank account) in order to solve the problems and receive his money. Not only did the Club not inform the Player of the issues but the Club also never replied to any of the Player s notifications/letters. If the Club really did want to solve the alleged bank account issues, it would have notified the Player but it chose not to, proving that its real intention was to avoid payment.

19 In relation to the Club s arguments that the bank transfer would amount to a violation of Qatar public policy, the Player noted that the Club freely agreed to include clause 2.2 in the Settlement Agreement specifying the bank account. Pursuant to Article 74.1 of the Swiss Code of Obligations (the Swiss CO ), the place of performance is determined by the intention of the parties as stated expressly or evident from the circumstances. The Player also reiterated that had he been told about the alleged bank problems he would have done everything he could, save for providing an alternate bank account, to help solve the problem. Pursuant to the principle of pacta sunt servanda, there is nothing to prevent the Club from fulfilling its obligations under the Settlement Agreement. v. Imposition of default interest and costs 107. In relation to the Club s arguments that interest should only be payable from 30 March 2015, the Player noted that the Settlement Agreement clearly stated that the deadline for the performance of the Club s financial obligations was 2 February By being in default of this payment, any interest applied should be applied from 2 February 2015 onwards In relation to the issue of costs, the Player submitted that clause 6.1 of the Settlement Agreement does not prevent the Panel from granting the prevailing party a contribution towards its legal fees and other expenses pursuant to Article R64.5 of the CAS Code. vi. Summary of the second round of submissions by the Player In addition to the arguments outlined above, the Player, in summary, also submitted the following in his second round of submissions: 109. The Player reiterated that the expedited procedure adopted by FIFA in this dispute was justified due to the objectives pursued by Article 12bis (i.e. to ensure that clubs properly and promptly comply with their financial contractual obligations). The fact that the Club did not object to the procedure adopted by FIFA at the time but waited to raise the argument at the CAS shows the Club s bad faith. Further, in any event, the de novo hearing at the CAS would remedy any alleged procedural violations In response to the Club s claims that an incorrect version of the RSTP was applied, the Player reiterated that FIFA had made it abundantly clear that Article 12bis was to come into force on 1 March 2015 and the Club s baseless arguments are an attempt to mislead the Panel and justify their reprehensible behaviour during this dispute In response to the Club s claims that Article 12bis should not apply in any event, while reiterating that he fully complied with the requirements of Article 12bis, the Player noted that the payment obligation of the Club is irrefutable (as constantly admitted by the Club) and FIFA could, and should, have dealt with the case anyway. Moreover, by asking the Player to submit yet another default notice (after having already given 3 separate default notices to the Club), if anything it was the Player who could have suffered damage as he had clearly already put the